01 February 2005

The next time a minister or politician, a policeman or soldier, a bureaucrat, judge or even a journalist tells us he or she cares about the rule of law, I have two words to say: Iftikhar Gilani.

The shocking story that this book tells is not just an indictment of the capriciousness and arbitrariness of power, or a grim chronicle of the sheer viciousness of the Indian State. It is also a depressing account of how all the so-called estates of society – including the Fourth – came face to face with an obvious injustice and were found wanting.

For seven months, Iftikhar – Delhi bureau chief of the Jammu-based daily Kashmir Times and a well-respected journalist in the Capital – was imprisoned without bail under the draconian and much-abused Official Secrets Act (OSA). His crime — possessing out-of-date information on Indian troop deployments in “Indian-held Kashmir” culled from a widely-circulated monograph published by a Pakistani research institute.

Most readers at this point will think I’ve made a mistake here. Why would the Indian government invoke the OSA to imprison someone for possessing information put out by Pakistan? The answer is, we really don’t know why. Were the intelligence officials who laid the charge stupid? Perhaps. Were they desperate to pin any crime on Iftikhar, no matter how ridiculous? Most likely. Were they confident they could get away with so monstrous a fraud? Almost certainly, for they knew that functionaries and officials in all branches of the State would help them in this task and that their superiors – whose orders they were presumably following -- would never allow legal action to be taken against them for malicious prosecution.

Whatever the petty calculations made by the petty men who went after him, we now know from the sequence of events described in this book that for the seven months that Iftikhar grew thin at Tihar jail, the erstwhile government of Prime Minister Atal Bihari Vajpayee knew he was completely innocent. Yet, the politicians and officials in charge of 'national security' in this country chose deliberately to keep him behind bars.

Taken into custody on June 9, 2002, Iftikhar was finally released on January 13, 2003, after the case fabricated by the Union Ministry of Home Affairs (MHA), Delhi Police and Intelligence Bureau (IB) collapsed under the weight of its own inconsistencies and contradictions. Even this might not have happened but for the ingenuity and persistence of a few journalists who took up Iftikhar’s case, ferreted out information that was later to prove useful in demolishing the prosecution case, and kept the continuing scandal of his incarceration and mistreatment a live issue by circulating petitions and badgering ministers and editors at frequent intervals.

Iftikhar is today a free man but, unfortunately, none of the issues that his arrest and incarceration raised have been addressed. More than anything else, his case demonstrated the legal and administrative power of the government's 'national security' apparatus to frame an innocent citizen. Those powers remain untrammelled. The OSA is bad enough, but if one considers the fact that the same system which framed Iftikhar under it also has laws like the Prevention of Terrorism Act (or its new avatar, the Unlawful Activities Prevention Act) at its disposal, the possibilities for misuse are almost limitless.

We now know that the initial decision to arrest Iftikhar was not the result of the serendipitous discovery of a file on his computer that aroused suspicion. The IB officials who trawled his hard drive came across a file with the heading, ‘Fact Sheet on Indian Forces in Indian Held Kashmir’. Sensing that they had finally found something potentially useful, the officials manually replaced all references to Indian Held Kashmir – a Pakistani term used to refer to those parts of Jammu and Kashmir not under their control – with the words ‘Jammu and Kashmir’, to suggest the file was extracted from an official Indian document. They then added the words, ‘Only for Reference. Strictly not for publication or circulation’, to heighten the suggestion of secrecy.

The first sin was committed at this point, when the IB fabricated evidence. But there was much more to come. The Directorate General of Military Intelligence (DGMI), which was tasked with evaluating the significance of the IB’s find, refused to pronounce a verdict of its own. Since it had been given a photocopy of the original Pakistani monograph, it could not but have known that there was no case and that Iftikhar was innocent. Indeed, this was precisely the opinion it rendered when, six months later, it was asked to re-evaluate the evidence against the journalist. But in June, for reasons that need to be probed, the DGMI and its hierarchy allowed themselves to be party to the rendering of an opinion (the information recovered could be "directly useful to our adversary") that they knew to be false.

Since the DGMI ‘opinion’ made no reference to the published document, Iftikhar’s counsel tried in vain to have the courts take cognisance of it and demand that the military provide a second opinion expeditiously. Here, the case hit its third and fourth roadblocks, which was the timorousness of the lower judiciary and media in matters ostensibly relating to national security and official secrets. What was surprising was that despite the alacrity of the courts in filing contempt proceedings against those who try to manipulate the course of justice by misreporting or misrepresenting what transpires during a hearing, the concerned judge took no action against a wholly fabricated news report which appeared in a national daily the first time Iftikhar was produced in court: “In the course of hearing on Monday, Geelani (sic) reportedly said he had been passing on classified information about the movement of Indian troops to the ISI. When chief metropolitan magistrate Sangita Sehgal asked him if she should record this in his statement, Geelani nodded in assent.”[1] The news was false and amounted to contempt of court. Yet, no action was taken.

As for the gullible crime reporter who was fed this story by the Delhi Police Special Cell, no apology was ever made. I happened to be introduced to the reporter in question at a colleague’s wedding in 2004 and when I said I had a bone to pick with her because of the hit-job she had done on Iftikhar Gilani, she said, “I don’t know any Iftikhar Gilani”. I was angry but decided to give her a bit of advice: “The police officials who used you to plant that story have escaped with their reputations intact. But what you did will remain a blot on your reputation as a journalist so long as you don’t apologise to Iftikhar”.

Neeta Sharma’s story was important to the police because it appeared just at a time when a petition drafted by Aunohita Mojumdar and other journalists and friends of Iftikhar was gathering steam. A brief report about the campaign had appeared in The Times of India on June 10 and the police and IB quickly realised the need to nip any journalistic acts of solidarity in the bud. Editors could be leaned upon (and they were) but there was no better deterrent to the campaigning spirit than a concocted confession by Iftikhar that he had been an ISI agent all along. Soon, the floodgates opened and any number of malicious reports appeared across much of the Indian media accusing Iftikhar of being a traitor and militant, smuggler and jihadi, a sex fiend and “spy claiming the privileges of a newsman”, in the libellous words of the Bharatiya Janata Party MP and one-time journalist, Balbir K. Punj.[2]

But if journalists erred in straying from the path of professionalism, their’s was a minor transgression compared to the moral and legal callisthenics of the MHA officials. When the DGMI’s second opinion, delivered in December 2002, absolved Iftikhar of any wrongdoing, theministry decided it would not be deterred from its “nationalist” duty of keeping an innocent journalist imprisoned at any cost. The Union law ministry was consulted and at a high-level meeting chaired by as senior an official as Special Secretary (Jammu & Kashmir affairs) A K Bhandari on December 26, 2002, the decision was taken to dismiss the DGMI's inconvenient opinion as "irrelevant".

Even though military intelligence was now conceding that the information recovered from Iftikhar’s computer had been compiled in Pakistan, the MHA felt the same was "prejudicial to the safety and security of the country" and that Iftikhar had to be prosecuted. On January 7, 2003, this was indeed the stand the MHA took in court.

Puzzled by the MHA's stand, I spoke with a very senior official in the ministry later that day. "You people say Gilani had a published document", he said, justifying the case. "But you forget it has been published in Pakistan". And how does that make it illegal, I asked. In any case, the Institute for Defence Studies and Analyses library in Delhi also has a copy of this document, I said. "Are you sure of it?", he shot back. The Kafkaesque conversation ended with the official promising to disclose yet more details about Iftikhar's treasonable document collection at a subsequent date. Before that date, however, the home ministry developed cold feet. Faced with the prospect of a showdown in court between the MHA and DGMI, someone somewhere decided discretion was the better part of valour. Without so much as a word of explanation or apology, the case was quietly withdrawn "for administrative reasons and in the public interest".

Strangely, the official I mentioned in the preceding paragraph was not done. He rang me up the day after Iftikhar was released to complain about the critical tone of an opinion piece I had written on the subject. “Do you know, there are a lot of other things he has done which you don’t know about”, he told me. Such as what, I asked. “You know he had five or six visa forms for Pakistan?”. The conversation was clearly not going anywhere and we agreed to discuss the matter later. I put down the phone, opened my own drawer and counted three Pakistani visa forms. If six forms netted Iftikhar seven months in Tihar, how many was I going to get for three? Fortunately for our civil liberties, that official has since retired and left the MHA. Less fortunately, however, he is now helping to run an equally important government organisation.

Iftikhar is a gentle, modest man who has put up with great pain and humiliation and come through a terrible ordeal with his dignity and honour intact. He has told his story here with the honesty and integrity that are the hallmarks of his craft as a journalist. There is also pathos and black humour in abundant measure. Most importantly,Iftikhar has used his skills as a journalist to transcend the immediacy and specificity of his own case and focus attention on the plight of the system’s other victims. The story he tells here is not just his own but also of those other unfortunate souls charged under the OSA in what seem like trumped up cases. Of those who are tortured and beaten in our prisons.

Iftikhar does not say so but it seems to me unacceptable that he should have been through the ordeal he has without someone in the system – politician, policeman, sleuth and bureaucrat -- having to pay a price for what was an obvious case of malicious prosecution.

Apart from monetary compensation, there is urgent need to fix individual criminal responsibility on the part of the concerned officials. Apart from the IB officials named by Iftikhar, who knew the document on his computer had deliberately been tampered with? Who prevailed upon the DGMI to give a bogus opinion on the document the first time around? Who planted false stories in the media?

The erstwhile Vajpayee government clearly had no incentive to ask these questions and it is doubtful any other government would want to expose to the public the true nature of how unprofessional and vindictive our law enforcement agencies can be. But the courts are a different matter. I hope every sitting justice of the Supreme Court reads this book. And I would urge the apex court to take suo motu notice of this case and direct the Criminal Bureau of Investigation to prosecute the officials responsible under the relevant provisions of the Indian Penal Code barring malicious legal proceedings. Iftikhar spent nearly seven months in Tihar jail. I am willing to wager that a month or two there — or even longer — might make law enforcement officials think twice before settling on another innocent victim.

As for the OSA, a colonial era law that has no place in the statute books of a democratic society, it needs to be repealed or drastically amended so as to end all scope for misuse.

February 1, 2005

Siddharth Varadarajan is Deputy Editor of The Hindu. His edited volume on the Gujarat violence, Gujarat: The Making of a Tragedy, was published by Penguin in 2002.